Tuesday, 2 June 2009

LETTER TO LORD FALCONER FROM CAMPAIGN FOR FREEDOM OF INFORMATION

The Campaign forFreedom of InformationSuite 102, 16 Baldwins Gardens, London EC1N 7RJTel: 020 7831 7477Fax: 020 7831 7461Email: admin@cfoi.demon.co.ukWeb: www.cfoi.org.ukHon. President: Godfrey Bradman Parliamentary Co-Chairs: Helen Jackson MPCo-Chairs: James Cornford, Neil McIntosh Archy Kirkwood MPDirector: Maurice Frankel Richard Shepherd MPCampaign for Freedom of Information Ltd. Registered in England no. 1781526. Registered office as aboveThe Rt Hon Lord Falconer of ThorotonSecretary of State for Constitutional AffairsSelborne House54-60 Victoria StLondon SW129 November 2004I am writing to express my concern at the revised code of practice issued under section 45 ofthe Freedom of Information Act which advises authorities on the discharge of their functionsunder the Act. The revised code was presented to Parliament last week but as it was notavailable for public consultation beforehand we have had no opportunity to comment on it untilnow.In two areas the revised code, unlike the original, contravenes explicit ministerial commitmentsmade to Parliament during the passage of the Freedom of Information Act. These involve thetime limit for responding to requests involving the public interest test and the circumstances inwhich authorities should accept information in confidence.1. Time limit for responding to requestsThe Act normally requires public authorities to respond to requests for information promptlyand in any event within 20 working days. However, where a decision on disclosure involvesthe public interest test this time limit does not apply and responses can be made within suchtime as is “reasonable in the circumstances”.The fact that the public interest test has to be considered does not mean that some complexissue, requiring prolonged consideration, is necessarily involved. Any straightforward factualrequest about the formulation of government policy - such as a request to be told how manyresponses were received to a government consultation document - would involve the publicinterest test and could exceed the 20 day limit. A high proportion of all requests, many of themsimple, will now be answered without the discipline of a fixed time limit. This is bound toencourage unnecessary delays.This issue was debated in Parliament during the passage of the FOI Act. It was pointed out thatunder the existing Open Government code more than 90% of all requests were handled withinthe code’s 20 working day target or the shorter period adopted by some departments. Concernabout unnecessary delays prompted the Home Office minister Lord Bassam of Brighton, togive the following commitment:-2-“the Government remain of the view that wherever possible all information should bedisclosed within a 20-day time period. That too - I give a commitment - will be reflected inthe Secretary of State's code.”1During the same debate, Lord Bach, then a government whip, said that the code would refer tothe desirability of:“making all decisions within the 20 working days wherever possible.”2The first edition of the code published in November 2002 did indeed reflect this commitment.It stated“Public authorities should aim to make all decisions within 20 working days, including incases where a public authority needs to consider where the public interest lies in respect ofan application for exempt information. However, it is recognised there will be someinstances where it will not be possible to deal with such an application within 20 workingdays.”3This passage has been omitted from the 2nd edition of the code published last week.4 There isnow no suggestion that authorities should attempt to deal with such requests within 20 workingdays where possible. Nor is this point reflected in the DCA’s guidance on requests, whichmerely states that where the public interest test is involved the 20 day limit is “is extended by a‘reasonable period’.”5The first edition of the code was subject to public consultation and we saw several drafts of it.At one stage this commitment which had initially been included was left out, apparentlythrough oversight. It was reinstated after we drew attention to the ministerial commitment.6The same thing has now happened again. I hope the commitment will once more be restored.2. Accepting information in confidenceThe first edition of the code contained several passages which discouraged authorities fromunnecessarily agreeing to accept information in confidence. Some of these provisions havenow been weakened or omitted altogether. As a result, the code no longer reflects a specificcommitment which you yourself gave in the House of Lords during the Act’s passage.During the report stage a number of peers expressed concerns that authorities mightunnecessarily agree to accept information in confidence. It was suggested that some mighteven do so deliberately, to ensure that the information which might expose them to criticismcould be withheld under the section 41 confidentiality exemption. If the information itself wasnot in the public domain, the authority’s agreement to accept it in confidence would probablybe enough to establish an enforceable obligation of confidence, exempting it from access.1 Lords Hansard 14.11.2000, col 1902 Lords Hansard 14.11.2000, col 2503 Lord Chancellor’s Code of Practice on the discharge of public authorities’ functions under Part I of the Freedom ofInformation Act 2000, Issued under section 45 of the Act November 2002, paragraph 184Secretary of State for Constitutional Affairs' Code of Practice on the discharge of public authorities' functions under Part I ofthe Freedom of Information Act 2000, Issued under section 45 of the Act. November 20045 DCA, Freedom of Information, Procedural Guidance, Chapter 6, Time and Fees Procedures.http://www.dca.gov.uk/foi/guidance/proguide/index.htm6 Campaign for Freedom of Information, ‘Further Comments on the Draft ‘Good Practice’ Code. March 2002,http://www.cfoi.org.uk/pdf/s45furthercomments.pdf-3-In response to these concerns you undertook to amend the draft section 45 code to specificallyaddress these points. You said:“We shall return with an amended code of practice aimed at dealing with the area ofaccepting information in confidence only if it is necessary to obtain that information and itis appropriate so to do.”7You later repeated this:“we recognise that the code of practice must be so constructed that information isgenuinely obtained in confidence only when it is necessary to obtain the information andthat that is appropriate.”8The first edition of the code contained such a statement. It said:“A public authority should only accept information from third parties in confidence if it isnecessary to obtain that information in connection with the exercise of any of theauthority’s functions and it would not otherwise be provided.”9This passage, which expressly reflected your commitment in Parliament, has now beendropped from the code.The two tests contained in that passage - that the information should be necessary to for theauthority’s functions and would not be provided without confidentiality - discourageauthorities from entering into casual commitments of confidentiality. They are helpful, reflectthe spirit of the Act and encourage a more rigorous approach to confidentiality.A number of other changes have been made which also seem to relax the approachto confidentiality set out in the code’s first edition. For example, the previous version stated:“When entering into contracts with non-public authority contractors, public authoritiesmay be under pressure to accept confidentiality clauses so that information relating to theterms of the contract, its value and performance will be exempt from disclosure. Publicauthorities should reject such clauses wherever possible.”10 (my emphasis)The second edition says:“When entering into contracts with non-public authority contractors, public authoritiesmay be asked to accept confidentiality clauses, for example to the effect that informationrelating to the terms of the contract, its value and performance will not be disclosed. Publicauthorities should carefully consider the compatibility of such terms with their obligationsunder the Act. (my emphasis) It is important that both the public authority and thecontractor are aware of the limits placed by the Act on the enforceability of suchconfidentiality clauses.”It seems entirely proper to advise authorities wherever possible to reject confidentiality clauseswhich seek to prevent the release of information about, say, the performance of a contractbecause of the importance of this information to public accountability. The revised advice nolonger does so. Instead, it advises authorities not to enter into unenforceable confidentialityagreements - an entirely different point. There may be circumstances in which a which a clause7 Hansard, Lords, 14.11.2000 col 1768 Hansard, Lords, 14.11.2000 col 1779 Paragraph 4710 Paragraph 42-4-attempting to prevent the release of information about a contract might be unenforceable eitherbecause the information was not confidential in nature or for public interest reasons. Butneither point automatically follows and an authority may well enter into an enforceableagreement to suppress such details, even where this information is needed for the purposes ofaccountability.The first edition of the code also said that any confidentiality agreements “must be for goodreasons and capable of being justified to the Commissioner”.11 That provision too has beenomitted from the new edition.Only last month the DCA published its guidance on the exemption for breach of confidence,which draws specific attention to the points made in the first edition of the section 45 code butnow deleted:“The Lord Chancellor has issued a Code of Practice under section 45 of the FOI Act.Paragraph 47 deals with the circumstances in which a public authority should acceptinformation in confidence:• public authorities should only accept information from third parties in confidence if it isnecessary to obtain that information in connection with the exercise of any of theauthority's functions and it would not otherwise be provided;• public authorities should not agree to hold information received from third parties “inconfidence” if it is not confidential in nature;• acceptance of any confidentiality provisions must be capable of justification to theCommissioner.This code has considerable force: it is one of the duties of the Information Commissionerto promote its observance and there is a legitimate expectation that public authorities willadhere to it. It is also likely that a court would take its provisions into account whendetermining whether a public authority has complied with the FOI Act.”12The provisions referred to in each of the three bullet points above have now been removedfrom the code, though it is hard to see why any of them could be thought to be objectionable.Why has this last minute change been made to advice which the DCA itself repeated only amonth ago and which authorities have been urged to follow for two years? The significance ofthe change is emphasised by the extract’s final paragraph which states that the code’sprovisions would be taken account by the courts in enforcing the Act.I hope the code will now be amended so that it once again reflects the two importantministerial commitments made during the FOI Act’s passage and does not unnecessarilyweaken the previous approach to confidentiality.Yours sincerely,Maurice FrankelDirector11 Paragraph 4412 DCA, Freedom of Information: Guidance on Procedures and Exemptions, Section 41, Chapter 6,http://www.dca.gov.uk/foi/guidance/exguide/sec41/chap06.htm